from the lucky-us dept

We've been covering the bizarre case of Sarah Jones v. TheDirty.com for a while now. Jones, a high school teacher and Cincinnati Bengals cheerleader, was (perhaps reasonably) offended by some posts and photos by users of TheDirty which made potentially defamatory claims about her. The whole case got off on the wrong foot when Jones' lawyers accidentally sued a totally different site, TheDirt.com, rather than TheDirty.com, which is how the case first drew our attention (also partially worrying us that they'd eventually accidentally sue Techdirt as well). Given the situation, though, it seemed pretty clear that Section 230 protected the site from liability (though not the original people who wrote the allegedly defamatory content). Except, Jones never bothered to go after the users, insisting that TheDirty.com and its founder Nik Richie were liable for the comments. Stunningly, the district court judge rejected the Section 230 defense, arguing that, in part, because the site had "dirt" in its name, Section 230 safe harbors didn't apply. As you might imagine, that hit home for us.

The ruling went a bit deeper than that, obviously, claiming that by republishing and adding commentary to the original submitted comments, TheDirty.com gave up its Section 230 protections, because it was "encouraging" defamation. Because of this, a jury awarded Jones $338k from TheDirty.com and Richie. However, thankfully, this morning the Sixth Circuit appeals court has overturned the district court and issued a nice, clean Section 230 ruling that highlights the importance of Section 230 safe harbors in protecting free speech online, and demonstrating how and why the district court got it so wrong.

The ruling goes through a nice history of the case and Section 230, and then notes the district court's wholly made up "encouragement" test to remove Section 230 safe harbors doesn't make much sense, noting that it was based on misreading existing case law elsewhere. It notes that an "encouragement" test would go against numerous other court rulings that found Section 230 safe harbors valid and would obliterate the purpose of Section 230:

More importantly, an encouragement test would inflate the meaning of “development” to
the point of eclipsing the immunity from publisher-liability that Congress established. Many
websites not only allow but also actively invite and encourage users to post particular types of
content. Some of this content will be unwelcome to others—e.g., unfavorable reviews of
consumer products and services, allegations of price gouging, complaints of fraud on consumers,
reports of bed bugs, collections of cease-and-desist notices relating to online speech. And much
of this content is commented upon by the website operators who make the forum available.
Indeed, much of it is “adopted” by website operators, gathered into reports, and republished
online. Under an encouragement test of development, these websites would lose the immunity
under the CDA and be subject to hecklers’ suits aimed at the publisher. Moreover, under the
district court’s rule, courts would then have to decide what constitutes “encouragement” in order
to determine immunity under the CDA—a concept that is certainly more difficult to define and
apply than the Ninth Circuit’s material contribution test

As the appeals court notes, this clearly goes against what Congress intended:

Congress
envisioned an uninhibited, robust, and wide-open internet,... but the
muddiness of an encouragement rule would cloud that vision. Accordingly, other courts have
declined to hold that websites were not entitled to the immunity furnished by the CDA because
they selected and edited content for display, thereby encouraging the posting of similar content.
... (“Such weak encouragement cannot strip a website of its
section 230 immunity, lest that immunity be rendered meaningless as a practical matter.”); ... We do the same.

This is important for a variety of reasons. Just this morning, I saw a debate break out on Twitter about whether or not someone is liable for retweeting a defamatory tweet. In other parts of the world the answer, ridiculously, is yes. Thankfully, this ruling highlights why that's not the case here in the US. Merely selecting and editing content for display does not remove your safe harbors. In this case, the court goes even further in noting that "ratifying or adopting" others' statements in no way makes you suddenly liable for those statements:

An adoption or ratification
theory, however, is not only inconsistent with the material contribution standard of
“development” but also abuses the concept of responsibility. A website operator cannot be
responsible for what makes another party’s statement actionable by commenting on that
statement post hoc. To be sure, a website operator’s previous comments on prior postings could
encourage subsequent invidious postings, but that loose understanding of responsibility collapses
into the encouragement measure of “development,” which we reject.... As other courts have recognized, the adoption
theory of “development” would undermine the CDA for the same reasons as an encouragement
theory

And thus, Dirty World is protected here:

Dirty World and Richie did not author the statements at issue; however, they did select
the statements for publication. But Richie and Dirty World cannot be found to have materially
contributed to the defamatory content of the statements posted on October 27 and December 7,
2009, simply because those posts were selected for publication.... Nor can they be found to have materially contributed to the defamatory content
through the decision not to remove the posts.... The CDA expressly bars “lawsuits seeking to hold a
service provider liable for its exercise of a publisher’s traditional editorial functions—such as
deciding whether to publish, withdraw, postpone or alter content.”

Also, thankfully for us at Techdirt in particular, the court points out that Dirty World's name doesn't remove liability just because it has "dirt" in it:

Nor
does the name of the website, www.TheDirty.com, suggest that only illegal or actionable content
will be published.

The court also notes that while Richie's additional comment "why are all high school teachers freaks in the sack" may be "absurd," it does not "materially contribute to the defamatory content." Nor, by the way, did Jones claim that Richie's own comments were ever defamatory -- the lawsuit was entirely focused on the content written by others. Instead, Jones' lawyer tried to claim that Richie's non-defamatory comments contributed to the defamation, and thus took away his safe harbor protections. But the court points out how absurd this is:

Richie’s remark was
made after each of the defamatory postings had already been displayed. It would break the
concepts of responsibility and material contribution to hold Richie responsible for the
defamatory content of speech because he later commented on that speech. Although ludicrous,
Richie’s remarks did not materially contribute to the defamatory content of the posts appearing
on the website. More importantly, the CDA bars claims lodged against website operators for
their editorial functions, such as the posting of comments concerning third-party posts, so long as
those comments are not themselves actionable.

And, the court also offers a pretty direct dig at Jones and her lawyers for targeting the wrong party (not the original lawsuit which totally targeted the wrong site, but for going after the site instead of the original commenters):

We note that the broad immunity furnished by the CDA does not necessarily leave
persons who are the objects of anonymously posted, online, defamatory content without a
remedy. In this case, Jones conceded that she did not attempt to recover from the person(s)
whose comments Richie elected to publish. She conceded that she did not attempt to subpoena
Richie or Dirty World to discover who authored the defamatory posts. Instead, she sued Dirty
World and Richie. But, under the CDA, Jones cannot seek her recovery from the online
publisher where that publisher did not materially contribute to the tortious content.

All in all, this is a good win for Section 230 safe harbors for online publishers, and a good win for free speech. This case should have gone this way at the district court level -- and it only went sideways because of a confused judge who basically misread or ignored pretty much all precedent on the issue.

from the this-is-kind-of-important-for-us dept

We've covered the bizarre case of Sarah Jones vs. Dirty World (operators of the website "thedirty.com") for quite some time. If you don't recall, this former professional cheerleader/school teacher got upset when a user of thedirty.com posted some statements about her that were potentially defamatory. Rather than go after the actual person who made those claims, Jones sued the site. Well, technically, she and her lawyers first sued the wrong site, which made for quite a mess at the beginning. Eventually, though, she sued the right site, which correctly pointed out that they were protected from liability for their users statements under Section 230 of the CDA. Every court that has taken on a Section 230 case like this has ruled the same way -- that sites are not responsible for the statements of their users. Every one. Until this one. Even more ridiculous -- especially for those of us here at Techdirt -- was the fact that the judge specifically stated that one of the reasons why the site was ineligible for Section 230 safe harbors was because the site had "dirt" in its name:

First, the name of the site in and of itself encourages the posting only of “dirt,” that is material which is potentially defamatory or an invasion of the subject’s privacy.

Yikes! Given the judge's nonsensical rejection of the Section 230 safe harbors, the case went forward and the jury awarded Jones $338,000 from the site. Not surprisingly, Dirty World appealed, pointing out that the court clearly got the Section 230 analysis totally and completely wrong. David Gingras, the lawyer for Dirty World, has provided a plain language explanation of the case, the process and the importance of this, along with the opening brief of the appeal. If you're not a lawyer or haven't followed this case closely, it's a good way to catch up on the details -- including why this case is so important.

As Gingras notes, nearly every circuit in the US has ruled that Section 230's safe harbors apply to websites, and remove liability from the sites for actions taken by their users. The circuit this particular case is in -- the Sixth Circuit -- is one of only two circuits that has not taken on this issue directly. So this is the first chance for the court to do so, and it can either agree with every other court, or it can try to forge its own way, which will almost certainly lead to Supreme Court review over the nature of the Section 230 safe harbors. Given just how key those safe harbors have been to innovation and the growth of the internet, this case is incredibly important on a whole variety of levels.

While I'm most interested in the larger legal questions concerning making sure Section 230's safe harbors are kept strong and intact, there is also (obviously) the issue that impacts us directly about the use of the name and the word "dirt." The brief has a whole section explaining why the name of the site is irrelevant (citing numerous cases that agreed). However, given that our name includes "dirt" as well, I'm tempted to explore filing an amicus brief in this case on that particular issue, given that we have a... unique perspective on this particular issue. While I admit that the other points in this case are clearly more important in the long run, I'm sure that Gingras and other amici will likely be able to handle those arguments easily.

Still, this case is going to be important to follow. Either the court will confirm, yet again, the core ideals that have helped the internet, innovation and user-generated content sites to flourish over the past decade and a half, or it will put all of that at risk. Just the fact that this is up for debate is troubling enough -- and while we're hopeful that the court will rule wisely, the small possibility of a ruling upholding the initial judge is immensely troubling.

from the that's-not-right dept

We've written a few times about former Cincinnati Bengals cheerleader/former school teacher Sarah Jones' ridiculous lawsuit against TheDirty.com, because one of its users had posted some claims that were potentially defamatory towards her. The case has been something of a mess. As we noted a few years ago, she sued the wrong company, filing the actual lawsuit against the company which runs TheDirt.com (not TheDirty.com). Eventually that got sorted out, and what should have been a straight quick dismissal because of Section 230 of the CDA (which says a site is not liable for statements made by users) was muddled because a judge didn't seem to like the website. The judge flat out claims that if a site has "dirt" in its name, it may not be subject to Section 230 protections. And that's kinda scary for those of us here at Techdirt.

First, the name of the site in and of itself encourages the posting only of “dirt,” that is material which is potentially defamatory or an invasion of the subject’s privacy.

Of course, having allowed the case to move forward and flat out contradicted pretty much every ruling on Section 230 to date, the jury has now said the site needs to pay $338,000. The lawyer for TheDirty.com is actually happy about this, because he can finally get the case out of that judge's court and bring it to an appeals court which might actually understand Section 230.

“I’m happy,” says David Gingras, lawyer for the TheDirty.com. “We have spent three and a half years litigating against a federal judge who thinks the Internet is an Atari video game. To have an adverse judgment is never a good thing, but it’s good for us to get out of that court.”

Of course, Kash Hill, at Forbes, also points out that Jones -- who claims her reputation was harmed by the claims on TheDirty.com -- seems to have done some damage to her own reputation, well beyond just suing the wrong site:

The three and a half years since the case was filed have been drama-filled. Jones originally sued the wrong site. She then amended her complaint to sue the right site, but had to take time off for her own criminal suit after she was charged with having sex with a minor. Her first trial against The Dirty ended in a hung jury. Meanwhile, she got engaged to the minor, a former student of hers. Needless to say, she is no longer teaching. Richie was happy to point out on his blog (repeatedly) that Jones ruined her own reputation in the years after his site published a warning about her.

Hopefully, we won't get sued for reposting that comment. After all, we are a website with "dirt" in the domain name.

from the hey,-wait-a-second... dept

Back in 2010, we wrote about an attempt to sue the website TheDirty.com for libel... in which the lawyer for the site accidentally sued a different site, called TheDirt.com. This resulted in some hilarity with a bogus default judgment and plenty of confusion. We joked how, given the similarities in the names of those sites to Techdirt, perhaps we should be happy that we weren't sued as well. However, once all the mistakes were realized, the case did shift to actually suing TheDirty.com's owner. TheDirty is (1) not safe for work and (2) not a particularly nice site. It mostly involves user submissions of pictures of women, along with generally mean commentary from the user -- and then maybe a short comment from the site's owner. It is a mean site, and the site's owner and readers seem to embrace that, even if it's exceptionally petty.

The specific lawsuit involved a Bengals cheerleader/school teacher, who wasn't happy with the pictures of her posted to the website... along with the comments made about her (such as suggesting she had slept with the entire football team). As we noted at the time, if this content is user generated -- it's a clear situation where the case should be dismissed over Section 230's safe harbors (which put the liability on the actual content creator, rather than the middlemen third parties). In this case, the actions that might reach the level of defamation clearly came from the user, not the site owner. Previous rulings in other districts have even made it clear that sites that merely pass along content created by someone else -- even if it involves a moderator "choosing" what gets displayed -- do not lose the basic protections. So this case should have been a slam dunk.

Instead... it appears that the judge has gone in the other direction, creating really convoluted arguments to claim that Section 230 does not apply. As Eric Goldman explains, there are serious problems with this ruling:

The court's discussion is short, yet it's surprisingly scattered. Pages 8-10 run through a gamut of gripes about thedirty's practices and statements, but the judge doesn't articulate the relevance of these facts (other than providing evidence of the judge's animus towards thedirty). Because the judge does a poor job connecting the facts to his adopted legal standard, we aren't sure exactly what thedirty did to foreclose the 230 immunity

The ruling, which is attached below, really is that bizarre. The judge twists and turns himself into contortions to try to come up with a reason to say that TheDirty.com is liable for comments made on the site. The simplest explanation, as Eric noted, is that the judge just didn't like the kind of site that TheDirty.com is (and from a quick glance, remains). The key to the judge's ruling is in trying to apply the infamous Roomates.com case. The problem, however, is that the case doesn't fit well. Roommates.com lost not because the site encouraged some actions against the law, but because its menu choices were a part of the content creation, and those menu choices, themselves, directly violated the Fair Housing Act.

It's a huge stretch to go from there to claiming that a site where mean things are celebrated is no longer protected via Section 230's safe harbors. But that's what the judge did.

And, in part, it gets really scary for me, personally, because the judge declares -- multiple times -- that the use of the word "dirt" in a domain name means that you are encouraging defamation:

First, the name of the site in and of itself encourages the posting only of “dirt,” that is material which is potentially defamatory or an invasion of the
subject’s privacy.

Of course, there's absolutely nothing in Section 230 that suggests that if a judge doesn't like your name -- or falsely assumes that any website with the word "dirt" in the name is up to no good -- he can ignore Section 230's important protections. Like Eric suggested, it would be good if there's an appeal here, because it seems to go against pretty much any other Section 230 ruling. Not liking a site is simply not a reason to ignore those important safe harbors...

And, just to summarize, here are the basics. The site, TheDirty.com posted a user submission, with a one-sentence comment on it. That submission included a cheerleader/teacher, who didn't like her photos being widely available. Somewhere along the way the legal shenanigans began. Remember, the contents of the post itself may be defamatory -- but that, alone, should not make the site liable. It could very well make the original submitter liable, but the cheerleader doesn't seem to want to go that route of actually suing those who did the bad thing. So, instead, the site now faces a lot of liability... because a judge thinks that having "dirt" in your domain name must mean that you're seeking out something bad.

For reasons beyond just the standard defenses of Section 230, this is pretty bizarre and slightly terrifying. I certainly don't encourage the submission of defamatory information. But because I have "dirt" in my domain name, does that mean I should be worried too?

from the that's-not-how-it-works... dept

Rose M. Welch points us to the news that the website TheDirty.com was sent a ridiculous cease and desist letter from lawyers representing Tess Taylor (apparently some reality TV personality whom I'd never heard of), after the site posted photos (warning: NSFW) of Taylor topless and partaking of various drugs (apparently both pot and black tar heroin).

Of course, these days you half assume that such stories are planted on purpose to build up the reputations of various desperate b- or c-list celebs. And, of course, claiming that the cease-and-desist is covered by copyright almost guarantees that it will get more attention. This is somewhat standard language on many cease-and-desist letters, but it's unlikely that there is any legal basis for it. There is little creative effort in the cease and desist, which is mostly boilerplate. It's difficult to see much copyright being allowed. Even if there was (and anyone want to bet on whether or not the letter was registered?) it would appear that fair use would allow the publication of the letter, despite the claims that:

This letter is a confidential legal communication and is not for publication. Any publication, dissemination or broadcast of any portion of this letter will construe a breach of confidence and a violation of the U.S. Copyright Act.

Good luck testing that one in court. First of all, even if the letter really was covered by copyright, fair use would almost certainly protect the publication of the whole thing (for the sake of reporting), if not "portions" of it. And the claim of "breach of confidence" is a huge stretch as well. That's usually applied to things like doctor-patient relationships. Arguing that the lawyers for Tess Taylor and the site TheDirty.com have any sort of "confidential" relationship established is beyond ridiculous.

As for the reasoning behind the C&D... that seems to come from similarly questionable legal theory. The lawyers rely on California's "rights of privacy and publicity," but the law in question there was written to protect celebrities from having their images used in advertisements for endorsement purposes. It's a stretch to suggest those same rights apply simply to "photos you don't like... because they're published on a for-profit site." Again, it seems just as likely that the whole ordeal was cooked up for publicity anyway, but it's still annoying to see various laws abused in this manner -- whether the letter represents a real legal threat or is just part of a publicity campaign.